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Status of Emergency Powers Legislation

Andrew Schlafly - AAPS General Counsel

I have reviewed the current status of state consideration of the Clintonesque Model State Emergency Health Powers Act (MEHPA), an appropriate task for Independence Day.

7 states have passed portions of MEHPA, while more than double that have rejected it. No state has passed all, or even nearly all, of MEHPA. So we've done well in fighting it.

Surprisingly, I think the worst is Republican-controlled Florida -- where I will soon debate a public health official before a crowd of 200+ in an effort to rescind it. Here is my ranking of the 7 MEHPA states with comments, beginning with the worst:

1. Florida – The public health department (not necessarily the elected governor) may declare a health emergency based on incidence that may result in substantial risk of harm to public health,; then the health department has the power to use law enforcement to forcibly quarantine or by "any means necessary" vaccinate, without any recognized exceptions.

2. Maryland – The governor may declare a "catastrophic health emergency," limited to an imminent threat of extensive loss of life or of serious disability cause by exposure to a deadly agent, defined as anthrax, ebola, plague, smallpox, and other listed causes, or mustard or nerve gas, or deadly radiation, and then act on the crisis.

3. Arizona – The governor may declare an emergency only if there is a substantial risk of a significant number of human fatalities or permanent or long-term disability, and may quarantine only if it is the least restrictive means, which expressly includes the possibility of detention in one's residence.

4. Georgia – The governor must call a special session of the legislature to approve or reject a declaration of a public health emergency, which requires a "high probably" of harm to a "large number" of people; vaccination rules must permit "consideration of the opinion of a person's personal physician as to whether the vaccination is medically appropriate or advisable for such person"; and unless there is "an epidemic or immediate threat thereof, the vaccination requirement shall not apply to any person who objects in writing thereto on grounds that such immunization conflicts with his religious beliefs."

5. New Hampshire – The governor may declare an emergency, which the legislature may revoke; the initial period of emergency is only 21 days; and a court order is required to quarantine.

6. Minnesota – Sunsets in 2004; the commissioner of health must apply for a court order within 24 hours after detaining someone, and must then release the detainee if a court order is not received within 48 hours.

7. Maine – Sunsets in 2003; the health department must prove by clear and convincing evidence at a hearing, within 48 hours of detainee someone, that the "person has been exposed to or is at significant medical risk of transmitting a communicable disease that poses a serious imminent risk to public health or safety and there are no less restrictive alternatives available to protect the public health and safety"; and the court must issue ruling in 24 hours of the hearing to release the person or detain him for a period no longer than 30 days.

Wisconsin blocked MEHPA but legislators then inserted and passed modified portions of it in a larger budget bill (AB 1B). Unlike MEHPA, Wisconsin allows the all-important conscientious objection to vaccination, and also permits isolation as an alternative to quarantine.